What was started as an empowerment project for the local indigenous community, turned into a legal dispute about the commercial use of traditional indigenous knowledge that left the community without much economic benefit or recognition.

Description

While most of the Ashaninka indigenous group lives in Peru, there is also a larger community along the Amônia river, located in the isolated Southwest of the Brazilian State Acre, in proximity to the Peruvian border and amid dense tropical rain forest. In their main village Apiwxta (their local name for "union"), the Ashaninka of the Rio Amônia have developed a vivid community structure that allows them to uphold indigenous traditions while taking up a proactive role in local civil society to encounter a number of socio-ecological challenges in the region, particularly the persisting conflicts around illegal logging and drug trafficking in their territory. Self-organization is however also a response to their historical struggles against colonists, rubber tappers, loggers, oil companies and, in case of the Peruvian Ashaninka, guerrilla groups violently invading their land. [1][2][3] Confronted with these historic challenges and renewed destructive developments in the region, they formed the Associação Ashaninka do Rio Amônia - Apiwtxa to take up the struggle for a more self-determined and sustainable future and with the objective to empower the Ashaninka community as a whole. [2]

Thus in the 1990s, with support of the NGOs Indigenous Rights Nuclei and Pro-Indigenous Commission, they started to raise funds to launch a project to prospect their forest resources and local knowledge and identify new livelihood opportunities. A researcher was hired and carried out field work accompanied and supported by community members over a period of three years, collecting information about traditional techniques and uses of plants and resource management. However, in 1996, he set off to start his own cosmetic company, Tawaya, which he positioned as a pioneer in the fabrication of murumuru forest soaps and proposed to buy murumuru from the community. [3] Murumuru (Astrocaryum ulei Burret) is a palm fruit traditionally used by Ashaninka people living along the Amônia river and serves as a vegetable fat with moisturizing capacity and, as it was discovered, can be used for shampoos, soaps and moisturizers. [4] The Ashaninka community did not agree with the researcher’s proposal and stated that instead of becoming mere providers of raw material, they want to remain owners of the research project themselves, alleging the researcher - who was also granted a patent on his name on murumuru and started to bring a soap based on it on the market - to use collectively gathered information for his private benefit. [3] [4] They referred to their agreement according to which results remained with the NGO and the community and their use required their authorization, and that also by law, traditional indigenous knowledge can only be accessed with prior consent of indigenous people and sharing of benefits resulting from the knowledge, as it follows from Brazil’s signing of the Convention on Biological Diversity and the adopted Provisional Measure 2.186/01. [4] [5]

This resulted in the Ashaninka’s claim of rights to traditional knowledge which was endorsed in 2007 by the Federal Public Ministry, opening a civil public lawsuit against the researcher and Tawaya, along with two other companies, Natura Cosmetics S.A. and Chemyunion Química Ltd, which were accused to have taken indirect advantage advantage of indigenous knowledge, and the National Institute of Intellectual Property (for granting the patent to the researcher). [3] As Natura had shortly before started to distribute cosmetic products on the basis of murumuru, it was stated that it came to know about the potentials of the plant through the community’s research and that their use of the plant was based on the traditional knowledge about its extraction and processing. [4] [6] The prosecutor of the Federal Public Ministry (Ministério Público Federal) demanded the Federal Court to hand out an order to return all the research and related information to the Ashaninka, to cancel applications for patents for murumuru and disclose the origin of traditional knowledge at the National Institute of Intellectual Property, to make the companies comply with benefit sharing of their generated profits from products with murumuru and additionally compensate the Ashaninka community for incurred moral harm. [3] [6] It based its demand for benefit sharing on a law article that guarantees indigenous communities the receiving of financial benefits of direct or indirect use and economic exploitation of their traditional knowledge by third parties. [7]

A conciliation hearing between Natura and Ashaninka representatives of the Apiwtxa Association held in 2009 at the Acrean Federal Court ended without agreement. Natura denied the allegations and refused press attendance at the hearing, fearing negative impacts on the company’s image. It stated that the properties of murumuru have already been studied and documented in scientific biographies since the 1940s. They went on to prove that it accessed murumuru from another cooperation with communities in an extractive reserve and that they undertook action to fulfill all requirements regarding the regulations for genetic heritage and traditional knowledge, which they however criticized as unpractical as it would discourage research and innovation in the field. This view is shared by other companies in the branch, usually with reference to the insecurities and high costs involved in researching genetic resources. An Ashaninka leader noted that Natura would not recognize the community’s rights because they fear to set a precedent for other cases in which they could be accused for biopiracy, but nevertheless the community would continue to fight for its rights. [3] [6] [7]

The legal dispute only ended six years after, in 2013, when the Federal Court discharged Natura and Chemyunion from the allegations, giving credit to their statements to not have had access to the particular knowledge of the Ashaninka therefore their products were not based on traditional knowledge. It noted that properties of murumuru have been described in literature since 1927 which lets assume that the knowledge was not exclusive and anyone could develop products using murumuru. In absence of evidence, also the request to compensate the Ashaninka for moral harm was not sustained by the Court. On the other hand, Tawaya and the researcher were condemned to pay compensation to the Ashaninka, corresponding to a sharing of 15% of their profits with the Ashaninka group of Apiwtxa for a period of 15 years from the beginning of the company’s activities, with a guaranteed minimum indemnity of two hundred thousand Reais. The Court justified this sentence as it found the researcher to have used the obtained information for his own benefit and moreover sharing it with third parties, disregarding a signed contract with the community. [3][4][5]

In the 1990s the Associação Ashaninka do Rio Amônia started to raise funds to launch a project to prospect their forest resources and local knowledge and identify new livelihood opportunities. A researcher was hired and carried out field work accompanied and supported by community members over a period of three years, collecting information about traditional techniques and uses of plants and resource management. However, in 1996, he set off to start his own cosmetic company, Tawaya, which he positioned as a pioneer in the fabrication of murumuru forest soaps

Development of a network/collective action Lawsuits, court cases, judicial activism Official complaint letters and petitions

Impacts

Environmental Impacts

Potential: Biodiversity loss (wildlife, agro-diversity)

Socio-economic Impacts

Visible: Other socio-economic impacts

Other

Communities disempowered: almost no economic benefit or cultural recognition - after conducting research project and fighting the lawsuit for years on the property rights on Murumuru (Astrocaryum ulei Burret) is a palm fruit traditionally used by Ashaninka people living along the Amônia river.

Outcome

Project Status

Stopped

Pathways for conflict outcome / response

Compensation Court decision (undecided)

Development of Alternatives

Allow community to remain in control over the commercial use of its traditional knowledge.

Do you consider this as a success?

Not Sure

Why? Explain briefly.

The development of this case has shown that traditional knowledge is situated in a legal limbo, making it difficult for indigenous groups to obtain intellectual property rights or an equivalent compensation for their local knowledge as this implies an issue for companies’ research profitability. Despite the ultimately granted small compensation of the community by Tawaya, this conflict exemplifies the diverging interests between an industry whose profits are fueled by the commodification of traditional knowledge and the indigenous hope to remain in active charge of it, using it as a potential pathway for empowerment and self-determination. The unequal benefit sharing also reveals existing asymmetries in power as traditional knowledge remains undervalued and indigenous communities become constructed as passive suppliers of a raw material while cosmetic companies market themselves in conformity with a sustainability discourse of the green economy.